Have we lost it...?

Two cases have emerged, which would shock and appal even the most hardened of souls. The serial kidnappings and subsequent killing of children in Noida, and the murder of an 11 year-old child by his friends serve to remind us what a disturbed world we live in. That no matter how much we may advance in technological terms, in the context of the mind, the intellect, we are more backward than even the primeval man.

The Noida kidnappings were at one moment mysterious, and yet so long as the skeletons of the children had not been found, there still existed a semblance of hope that the children would return to their homes, maybe not unblemished, but definitely alive. But the discovery of the skeletons must have dashed all these hopes. The local law enforcement authorities predictably failed in their duties once again, and the end result is that too much innocent blood has been shed.

To my mind, rape and sexual abuse have always been the most horrendous and horrible of crimes that an individual may perpetrate. Even murder pales before it, because at least in the case of murder, the victim is granted death, thereby releasing him from his agony. But a rapist offers no such solace, no such reprieve. He impales not only the body, but also the soul, the mind, and leaves not a person, but an empty shell in the wake of his cruel passions. Such a crime is not just reprehensible; it is plain abominable.

But nothing compares with abusing children. I mean, how can someone be so depraved as to blemish an innocent soul, to so torment that which has been so often described as God’s most beloved, with such a satanic act? Paedophilia is perhaps the worst that a dissolute mind can conjure from the depths of Hell. It is still possible for adults to emerge out of the shock, out of the pain that rape may induce, but it is impossible to imagine that the ordeal that the juvenile victim faces could vanish or even be reduced in the face of the passing years of Time.

I say, hang these degenerate criminals; there can be no notion of mercy in such cases. I have always been a strong proponent of capital punishment, but can and will permit the judiciary’s decisions to grant punishments other than this in crimes such as murders. But when it comes to such crimes, crimes which don’t just break the law, but also threaten the very normalcy of society, there can be no reprieve, because such felons do not deserve any kindness, because to do so would be to rub salt in the wounds of the victims and their families. We cannot afford doing that, not now, not ever.

Justice is served.

Justice is deemed served only when the victims feel a sense of closure. It is imperative that one understands that while justice may be delivered, by virtue of a sentence or a verdict, it may still remain far from allaying or soothing the angst of the victim(s), if it doesn’t take into consideration their emotions, and merely judges the issue on the basis of cold facts.

The Jessica Lal case, which has rocked India, has come to an end. Some would exclaim the ultimate conviction of Manu Sharma and his accomplices as the victory of justice, and a reaffirmation of the trust that the common man reposes in the corridors of the judiciary. Some would see this as another indication, another vindication of the principle that all are equal before the law, be they a king or a commoner. And quite rightly they believe so.

And yet, 7 years is too long for justice to be served. In these years, the parents of Jessica Lal passed away, in wait of their daughter’s murderer’s conviction. Allegations of the most reproachable and reprehensible manner have been leveled against the late Ms. Lal herself, and not much was said or done about the one who made these comments. Evidence was tampered with, and the entire judicial process mocked at. What absolute power can achieve if it wishes to do so is aptly demonstrated by way of the manner in which the convicted tried to subvert the system. That despite all this, justice was delivered is in itself a matter of pride, a matter of great celebration.

The family of Ms. Lal had declined to ask for the death sentence for the convicted, on ideological grounds. So, life imprisonment for them is a just punishment, and perhaps somewhere these beliefs of theirs must have weighed heavily with the court when it took the decision of whether to pronounce the death penalty or life imprisonment.

I am a supporter of the death penalty, and advocate it being used to punish those who commit the most abominable crimes, such as pedophilia, patricide, matricide, and even rape. Homicide involving torture of the victim also ought to qualify, as it isn’t simply an act of passion therein, but a coolly planned crime, aimed at causing the greatest degree of horror.

But in this case, the rarest of rare criterion is inapplicable, simply because this was a crime of passion with no ulterior motive behind it. And I do not find it odd to say that by declining to punish Mr. Sharma by way of the death penalty, the court has judged rightly, and judged solely on the basis of the facts before it, and not on the media outcry and the public sentiments associated with the case. The fears of the defense counsel have been shown to have been unfounded, and one’s faith in the judiciary has been reaffirmed once again, manifold.

Judging the judges...

The Judges (Inquiry) Bill, which has been introduced in the Lok Sabha, is a landmark bill, and will definitely cause some serious changes, should it get passed. The bill aims to deal with the problem of the lack of a suitable resolution mechanism vis-à-vis complaints of misbehaviour of Supreme Court and High Court judges.

Till date, the judiciary has remained beyond such introspection, as the incidence of such acts itself was very low, and hence actually setting up a mechanism to deal with them was deemed a time-consuming, and ultimately redundant process, which could best be avoided. But now the amount of complaints that have arisen against judges alleging their complicity and at times a biased outlook calls for some serious re-evaluation of the system itself.

One must not fear that this system could be the precursor to a systematic politicisation of the judiciary. If anything, this reinforces the principle that most of the wings of the State practice, that an organisation is best suited to deal with the misdeeds of its members. The Civil Services have their Administrative Tribunals, the Armed Forces their military tribunals, so why not the judiciary have its own tribunal to deal with those who deviate from its codes of conduct?

I have, in all my preceding blogs, been a fierce proponent of a strong judiciary. But, I do not find this decision of the Union Cabinet to be harming the strength of the judiciary in any way. On the contrary, it will improve the accountability of the judiciary and prevent the misuse of the powers and privileges vested in the judges by the Constitution. This becomes a most remarkable concept, because then truly no one is above the law in India, not even those who are to judge by the basis of these laws.

That this bill’s tabling comes so soon after the Supreme Court of India has suggested the inapplicability of constitutional protections accorded to members of Parliament, ministers and bureaucrats, especially in cases wherein the individual concerned is alleged to have broken the law, as also within a day of the Union Law Minister’s defence of the judiciary’s power of review, as also his repudiation of charges of judicial activism is also significant, because it firmly establishes that while the judiciary is critical of the protections which have been misused by guilty politicians, it is open to reform within its own house. It would have been unfortunate had the judiciary chosen to oppose this move, but that they have chosen to support it is a sign of their maturity and of their willingness to subject themselves to scrutiny. Whether this maturity lasts, and whether this scrutiny works to the advantage of the nation, only history will tell.

Ingratitude: Thy name be Politicians!

Today is a sad day in India’s post-independence history. And maybe it isn’t as much of a shock as a vindication of the oft-repeated stance that the life of any Indian, save those who are part of the political system, is not even worth the funeral shroud in the eyes of the State. And that such a stand gets vindicated in so cruel a manner is saddening, nay, distressing.

Five years ago, on the 13^th of December 2001, a group of terrorists infiltrated the Parliament House, and indiscriminately fired their weapons, with a clear intent to kill as many people as possible. Security personnel immediately shot back, and closed the gates of the compound. Members of Parliament were ushered into Central Hall, where they were protected from all this gunfire. Outside, all the five terrorists were shot dead, whereas six security personnel and a gardener were killed, as also 18 others were injured. No members of either the legislature or the executive were even hurt.

The then-incumbent NDA government immediately claimed the involvement of elements having support from Pakistan, and swiftly arrested, and convicted, within a span of one year, four Jaish-e-Mohammed members for their role in the attack. Of these four, two were subsequently acquitted by the higher judiciary for lack of credible evidence, whereas one received a death sentence. The personnel who had given their lives in the course of duty, to protect the members of the legislature and the executive, were honored with various gallantry awards. They were accorded the status of nothing less than heroes of the highest grade.

Fast forward to 2006, and the situation seems weirdly reversed. The terrorist, who had borne the brunt of countless insults and scorn, has appealed to the mercy of the President of India, after having been rebuffed by all levels of the judiciary. Politicians from his home state have urged the government to grant him clemency, else the state erupt into flames. The very politicians whose lives those security personnel died saving today are clamoring for his mercy petition to be received and possibly even approved.

And if that isn’t shameful, then I don’t know what is. To so dishonor the memories of those who have given their lives so that you may breathe the fragrance of existence is damnable, even abominable. I have consistently maintained that Mr. Afzal isn’t worthy of clemency, because this isn’t an act of passion, wherein emotions could have been seen to have warped reason. This was a cold-blooded crime, thought out in detail, decided with precision, and intended to destabilize the nation by eliminating the topmost layers of power and authority.

I am sorry to say this, but now I feel, I just feel that it would have been preferable that at least a dozen or more politicians ought to have died at the hands of those terrorists, before they were gunned down by security personnel. At least that way, no politician would have found it tenable to support a clemency petition with such impunity. Maybe then, the memories of those who have died would have meant more than it means now.

And even when I say this, I feel ashamed, because even as I am scathing in my sarcasm, I wound those who lost their beloved ones in this attack. They who had nothing to do with the scum their beloved protected, why must they be so tortured? That they today have returned all the awards the State conferred upon their loved ones is a right step, because if there is a semblance of shame in these shamefaced politicians, this repudiation of a falsely expressed sense of appreciation should be reason enough for half of them to drown themselves in some nullah in Delhi. Nay, even the waters of Hell would reject such ungrateful souls!

Judicial activism, say you?

The decision of the legislative and the executive to launch a joint attack on the judiciary for what they term as unwarranted judicial activism shouldn't come as a surprise to anyone. After all, when such skirmishes have occurred barely 2-3 years after the birth of the Indian nation, that things should now come to this is neither a matter of surprise nor of astonishment. However, it is definitely a matter of concern.

The Constitution is clear in its demarcation of powers between the legislature, the executive and the judiciary. The legislatures are empowered to create laws, the executive to implement them, and the judiciary to ensure that all and any laws created are within the ambit of the Constitutional framework, as also that the executive is implementing the laws in the best and most effective manner. There is no ambiguity in this matter.

The authority of the judiciary to review the statutes created by the legislatures empower it to strike down such statutes as may be deemed as violating the provisions of the Constitution. Judges may strike down a statute, sure, but on what reason? And who is to say that their interpretation of the provisos of the Constitution is correct?

The judiciary may basically adhere to either of the two most prominent interpretative theories in law, viz. strict constructionism and living constitutionalism. Basically, the former asks of the judiciary to view statutes solely in view of their actual content, and not question the motive or intent of the legislature behind bringing about the said statute. They may only view the validity of the statute in terms of its adherence to the letter of the Constitution. The latter on the other hand grants the judiciary the right to interpret the statute in view of the Constitution provisos, but at the same time, keeping in mind whether the provisos with regard to the present have been adhered to, i.e. whether the statute adheres to the spirit of the Constitution.

Whether the Indian judiciary follows the constructionist or the living constitutionalist approach is a matter of study. The current judicial environment points towards a slightly constitutionalist tilt, but whether this tilt can be viewed as activism is debatable.

Chief Justice John Roberts of the United States Supreme Court has made a very poignant statement regarding judicial activism. He says and I quote, “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” But this doesn’t mean that the judiciary may not discharge their responsibility of interpreting the law and enforcing the limits the Constitution places on either the legislature or the executive. Judicial vigilance in upholding constitutional rights is in no sense improper activism. It is not judicial activism when the courts carry out their constitutionally-assigned function and overturn a decision of the Executive or Legislature in the course of adjudicating a case or controversy properly before the courts.

The courts, in having convicted two sitting Members of Parliament, have displayed maybe a sense of activism, but whether it is unwarranted activism is a matter of introspection. The legislature is deemed the representative of the people, and that within its folds, protected by its privileges, individuals continue to display wanton disregard for the law, flouting it day in and day out, is a distressing and disturbing thought. In such a matter, should not the judiciary be empowered to strike down or at least strip such individuals of such unjustifiable protections? Should not it be allowed to demonstrate that although Parliament is supreme as regards the law, it is Salus populi suprema lex esto (let the good of the people be the supreme law), which is the ultimate guiding principle?

The question is laid, and answers are sought. Time will tell the fate of this conflict.

Justice restored.

The Lady would be pleased today. For once, those who had always been beyond her pale, those who had refused to submit to her diktats, those souls now tremble at her feet, wondering what greater travails she will choose to inflict on them.

The conviction of Mr. Shibu Soren, 'distinguished' member of the Union Cabinet of Ministers, and 'father' of the State of Jharkhand, by a sessions court in Delhi, in a kidnapping and homicide case, and his consequent life imprisonment is a sign that India may be a flawed democracy, but it's flaws have a long way before they may be deemed sufficient to overpower reason altogether. That there are protesters who are declaring the 'innocence' of Mr. Soren doesn't deny this fact; rather it was expected, as Mr. Soren is after all a politician, a leader of the 'masses', and would be expected to find some support from amongst them.
But then I pray that there be no miscarriage of justice, that no laws be passed to overrule such revolutionary convictions, wherein an incumbent member of the Executive has been charged with homicide in cold blood, and has received the second highest form of punishment possible under the Indian Penal Code.
Let this judgement serve as a reminder to both the Executive as also the Legislature that they are at best the representatives of the people, their legates in the halls of power and authority, not their overlords. Let them know that the people have enshrined in their hearts the slogan of ancient Scotland, Nemo me impune lacessit (No one wounds me with impunity). Let this judgment be a wake-up call for all those who know where the rot lies in the system, and cause them to start cleaning it up, not just for this generation, but for generations to come. Let not the Lady be forced to pull on her blindfold again; let this be her prerogative, not her misery.